View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Duke Law Scholarship Repository STOP THE ABUSE OF GMAIL! 1 GRANT YANG ABSTRACT Gmail, a highly anticipated webmail application made by Google, has been criticized by privacy advocates for breaching wiretapping laws, even before its release from beta testing. Gmail’s large storage space and automated processes developed to scan the content of incoming messages and create advertisements based on the scanned terms have enraged privacy groups on an international level. This iBrief will compare Gmail’s practices with its peers and conclude that its practices and procedures are consistent with the standards of the webmail industry. The iBrief will then propose additional measures Gmail could institute to further protect webmail users’ and alleviate the concerns of privacy advocates. INTRODUCTION ¶1 Louis Gerstner, former CEO of IBM, once stated that with new technology the “real issues are not technical;” rather, the benefit stemming from new technology “is always counterbalanced by an equally important list of societal concerns.”2 Though not officially released to the general public, Google’s webmail client, Gmail, illustrates Gerstner’s statement, as it has already generated not only praise and excitement, but also criticism and threats of legislative regulation. ¶2 Two components of Gmail that raise privacy concerns are its two- gigabyte storage capacity and its Adsense technology, which scans e-mail and places advertisements into the message related to its content.3 This iBrief will analyze Gmail’s conformity with privacy laws and compare Gmail to other webmail clients such as Yahoo! and MSN Hotmail (“Hotmail”). Section I will begin by providing the history of Gmail and the Adsense technology. Section II will then analyze Gmail’s expanded data storage capacity and its legal and practical implications. Section III will address concerns specifically related to the Adsense technology, its 1 B.S. in Computer Science, Stanford University, 2001; Candidate for J.D., Duke University School of Law, 2005; Candidate for LL.M. in International and Comparative Law, Duke University School of Law, 2005. 2 LOUIS V. GERSTNER, JR., WHO SAYS ELEPHANTS CAN’T DANCE? 272 (HarperCollins 2003) (2002). 3 About Gmail, GMAIL, at http://gmail.google.com/gmail/help/about.html (last visited Oct. 10, 2004). 2005 DUKE LAW & TECHNOLOGY REVIEW No. 14 compliance with current statutes, threatened regulation, and implications on society’s collective expectation of electronic privacy. Finally, section IV will present several options for Google to consider that may alleviate some of these privacy concerns. I. BACKGROUND 4 ¶3 Since its founding in 1998, Google has become an economic powerhouse, capturing the largest market share of the Internet search industry.5 Like many search providers, Google is expanding its services to include webmail, an e-mail application that is more convenient and accessible for mobile consumers than traditional e-mail clients.6 Eventually Google hopes to integrate its many different services,7 including webmail, to create a profitable product. ¶4 Gmail’s innovative features have turned heads in the technology community. The free service originally included one gigabyte of storage space;8 a significantly larger amount than search engine rivals Yahoo! and MSN offered.9 However, Gmail recently announced it would double 4 Google History, GOOGLE, at http://www.google.com/corporate/history.html (last visited Oct. 10, 2004). 5 Danny Sullivan, comScore Media Metrix Search Engine Ratings, SEARCHENGINEWATCH, July 23, 2004, at http://searchenginewatch.com/reports/article.php/2156431 (Google has 36.8% as of May 2004). 6 Brad Templeton, Privacy Subtleties of Gmail, at http://www.templetons.com/brad/gmail.html (last visited Oct. 10, 2004). Some services can be comprehensive, such as .Mac, which for $99 per year, offers an e-mail account with virus protection, backup software, online file storage, calendar synching, web hosting, web-design tools, and system backups. Alex Salkever, Can .Mac Withstand the G-Force, BUSINESSWEEK ONLINE, Apr. 15, 2004, at http://www.businessweek.com/technology/content/apr2004/tc20040415_8968.ht m. 7 See About Orkut, at http://www.orkut.com/about.html (last visited Oct. 10, 2004) (describing Google’s online network software that applies the six-degrees of separation concept of networking); Amit Asaravala, Google to Unveil Free E- mail, WIRED, Mar. 31, 2004, at http://www.wired.com/news/business/0,1367,62897,00.html (describing Gmail and the Google search engine). 8 Asaravala, supra note 7. 9 See Evan Hansen, The Fellowship of the 1GB Storage Lockers, CNET NEWS.COM, May 27, 2004, at http://news.com.com/The+fellowship+of+the+1GB+storage+lockers/2100- 1024_3-5221988.html (describing how Yahoo and Lycos boosted their storage); Graeme Weardon, Lycos: We’re First with a Gigabyte of E-Mail, CNET NEWS.COM, May 18, 2004, at 2005 DUKE LAW & TECHNOLOGY REVIEW No. 14 storage capacity to two gigabytes.10 Gmail also indexes messages using Google’s search technology, allowing users to search their stored e-mail based on key terms rather than traditional organizing methods such as date and sender.11 A further innovation of Gmail is that it arranges messages in conversation threads.12 The threads allow users to view e-mails and their responses as an entire conversation chain rather than as individual 13 messages. ¶5 Unlike its rivals, Gmail does not display randomly generated banner or popup advertisements.14 Instead, Gmail couples its Adsense technology15 with its search engine16 to place text-based ads into the content of e-mail messages. Adsense, a wholly automated process, scans the content of incoming e-mail messages for key words and selects advertisements http://news.com.com/Lycos%3A+We%27re+first+with+a+gigabyte+of+e- mail/2100-1024_3-5214626.html (stating that Lycos announced it would offer 1 gigabyte of storage). MSN charges $19.95 a year for 2 gigabytes of storage. MSN Hotmail Plus, MSN, at http://join.msn.com/content.aspx?pgmarket=en- us&page=hotmail/es&ST=1&xAPID=1983&DI=1402 (last visited Oct. 9, 2004). Yahoo! recently announced that it planned to boost its free e-mail limit to 1 gigabyte. Jim Hu, Yahoo Bolsters E-Mail Storage to 1GB, CNET NEWS.COM, Mar. 22, 2005, at http://news.com.com/Yahoo+bolsters+e- mail+storage+to+1GB/2100-1032_3-5630773.html?tag=nefd.top. 10 Evan Hansen, Google Plans to Double Gmail Capacity—At Least, CNET NEWS.COM, Mar. 31, 2005, at http://news.com.com/Google+plans+to+double+Gmail+capacity--at+least/2100- 1032_3-5649571.html?tag=nefd.top. 11 Letter from Marcia Hoffman, Staff Counsel, Electronic Privacy Information Center, to David M. Hardy, Chief, Records/Information Dissemination Section of the Federal Bureau of Investigation (Apr. 29, 2003), at http://www.epic.org/privacy/gmail/foirequest.html. To view screenshots of search capabilities, see http://gmail.google.com/gmail/help/screen3.html. 12 About Gmail, supra note 3; Steve Gillmor, Google’s Brin Talks on Gmail Future, EWEEK.COM, Apr. 23, 2004, at http://www.eweek.com/article2/0%2C1759%2C1572683%2C00.asp. 13 Getting Started With Gmail, GMAIL, at http://gmail.google.com/gmail/help/start.html (last visited Oct. 10, 2004). 14 See Kim Zetter, Free E-mail With a Steep Price?, WIRED, Apr. 1, 2004, at http://www.wired.com/news/business/0,1367,62917,00.html (describing its advertising method of placing text ads). 15 Adsense automatically delivers text and image ads “that are precisely targeted, on a page-by-page basis, to [a] . site’s content.” Google Adsense for Content, GOOGLE, at https://www.google.com/adsense/afc-online-overview (last visited Oct. 10, 2004). Google Adwords also allows customers to create their own ads, choose keywords to match ads, and pays per click. Google Adword, GOOGLE, at https://adwords.google.com/select/Login2 (last visited Oct. 10, 2004). 16 See Google AdSense FAQ, GOOGLE, at https://www.google.com/adsense/faq (last visited Oct. 10, 2004) (describing the program and its use with Google). 2005 DUKE LAW & TECHNOLOGY REVIEW No. 14 corresponding to the words. However, Google maintains that no human ever reads the content of incoming e-mails.17 Wayne Rosing, Google’s vice president of engineering, has publicly stated that Google will not sell ads based on certain sensitive words, nor will it keep a record of keywords that appear in an individual’s e-mail.18 II. DATA STORAGE, COMPLIANCE AND LAW ENFORCEMENT ¶6 Critiques of Gmail have attacked the system on a number of fronts. The most frequent criticisms focus on the privacy dangers associated with the large storage capacity and linking tools. A. Risks of Data Storage and Linkage ¶7 Consolidated data storage is generally risky, especially on third- party servers. History provides a long list of compromised e-mail servers and divulged secrets.19 Privacy advocates are concerned that Gmail’s large storage space will encourage users to consolidate all their data in a Gmail account and retain e-mail messages for longer periods of time.20 If hacked, 21 an unauthorized user could create a “detailed portrait” of a user’s life. 17 Gmail and Privacy, GMAIL, at http://gmail.google.com/gmail/help/more.html (last visited Oct. 10, 2004). The terms-of-service agreement clearly states that the ad targeting is done by machines. Asaravala, supra note 7. Although the Terms of Service do not describe the ad-placement, Gmail’s privacy policy does. Gmail Privacy Policy, GMAIL, at http://www.google.com/gmail/help/privacy.html (last visited Oct. 10, 2004). 18 Zetter, supra note 14. 19 Declan McCullagh, Is Google the Future of Email?, CNET NEWS.COM, Apr.